The Difficulty of Conversations About Sustainability and European Competition Law

Starting off with an imaginary, but reality-grounded conversation between two fairly reasonable competition law persons – obviously with opposing views for it to be neither boring nor too short – this contribution tries to show why such conversations on competition law as hindering sustainability are often difficult. The article then quickly delves into some background-notions that are not always made explicit, but nonetheless generally inform such conversations. It then segues into an overview of the many legal (and some extra-legal) intricacies that such a conversation might touch upon by focusing on the “dehindering” focal points within European competition law before returning to a fundamental question: Why a fairly reasonable competition lawyer (or economist, for that matter) might conclude that sustainability is, indeed, also a concern for European competition law.

By Anna Gerbrandy¹

I. INTRODUCTION

Though it has been brought forward that European competition law is hindering sustainability-focused cooperation between companies, and that, therefore, competition law should change, there is much to unpack in such a statement. Some of the legal intricacies of this unpacking is the focus of section 3 of this article (and other contributions in this CPI Antitrust Chronicle). However, I will also try to understand why a conversation on “competition law and sustainability” is often difficult (with section 2 touching upon some of the fundamental diffi